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OML-AO-4752

                                                                                               April 16, 2009

The staff of the Committee on Open Government is authorized to issue advisory opinions.  The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.

Dear

            We are in receipt of your requests for advisory opinions concerning application of the Open Meetings Law to certain proceedings of the Putnam Valley Planning Board. 

            In specific, you indicated that Planning Board members typically gather in a conference room prior to the 6 PM public meeting and discuss Board business.  Usually a quorum of the members is present, and at 6 PM they move into the courtroom for the public meeting.  You also indicated that between Planning Board meetings, three members of the Board (a quorum) gather with the Chair of the Zoning Board and the Town Attorney to discuss the draft zoning code, as an advisory committee to the Town Board.  In an attempt to address all of the issues that you raised, we offer the following comments.

            First, the Open Meetings Law pertains to public bodies, and §102(2) defines the phrase "public body" to mean:

"...any entity for which a quorum is required in order to conduct public business and which consists of two or more members, performing a governmental function for the state or for an agency or department thereof, or for a public corporation as defined in section sixty-six of the general construction law, or committee or subcommittee or other similar body of such public body."

            Based on the foregoing, a public body is, in our view, an entity required to conduct public business by means of a quorum that performs a governmental function and carries out its duties collectively, as a body.  The definition refers to committees, subcommittees and similar bodies of a public body, and judicial interpretations indicate that if a committee, for example, consists solely of members of a particular public body, it constitutes a public body [see e.g., Glens Falls Newspapers v. Solid Waste and Recycling Committee of the Warren County Board of Supervisors, 195 AD2d 898 (1993)].  For instance, in the case of a legislative body consisting of seven members, four would constitute a quorum, and a gathering of that number or more for the purpose of conducting public business would be a meeting that falls within the scope of the law.  If that entity designates a committee consisting of three of its members, the committee would itself be a public body; its quorum would be two, and a gathering of two or more, in their capacities as members of that committee, would be a meeting subject to the Open Meetings Law.

            In the context of your inquiry, clearly the Planning Board is a public body.  Based on the rationale outlined above, in our opinion, a committee whose membership includes a majority of the Planning Board would also constitute a public body subject to the Open Meetings Law, and in any event, a gathering of a quorum of the Planning Board membership to discuss public business would constitute a meeting of the Planning Board regardless of others present. 

            Second, we note that the definition of "meeting" (Open Meetings Law, §102[1]) has been broadly interpreted by the courts.  In a landmark decision rendered in 1978, the Court of Appeals, the state's highest court, found that any gathering of a quorum of a public body for the purpose of conducting public business is a "meeting" that must be conducted open to the public, whether or not there is an intent to take action and regardless of the manner in which a gathering may be characterized [see Orange County Publications v. Council of the City of Newburgh, 60 AD2d 409, aff'd 45 NY 2d 947 (1978)].

            The decision rendered by the Court of Appeals was precipitated by contentions made by public bodies that so-called "work sessions" and similar gatherings, such as "agenda sessions," held for the purpose of discussion, but without an intent to take action, fell outside the scope of the Open Meetings Law.  In discussing the issue, the Appellate Division, whose determination was unanimously affirmed by the Court of Appeals, stated that:

"We believe that the Legislature intended to include more than the mere formal act of voting or the formal execution of an official document.  Every step of the decision-making process, including the decision itself, is a necessary preliminary to formal action.  Formal acts have always been matters of public record and the public has always been made aware of how its officials have voted on an issue.  There would be no need for this law if this was all the Legislature intended.  Obviously, every thought, as well as every affirmative act of a public official as it relates to and is within the scope of one's official duties is a matter of public concern.  It is the entire decision-making process that the Legislature intended to affect by the enactment of this statute" (60 AD 2d 409, 415).

            The court also dealt with the characterization of meetings as "informal," stating that: 

"The word 'formal' is defined merely as 'following or according with established form, custom, or rule' (Webster's Third New Int.  Dictionary). We believe that it was inserted to safeguard the rights of members of a public body to engage in ordinary social transactions, but not to permit the use of this safeguard as a vehicle by which it precludes the application of the law to gatherings which have as their true purpose the discussion of the business of a public body" (id.). 

Based upon the direction given by the courts, when a majority of the Planning Board is present to discuss Planning Board business, any such gathering, in our opinion, would constitute a "meeting" subject to the Open Meetings Law. 

            Third, as mentioned earlier, the Open Meetings Law requires that notice be given to the news media and posted prior to every meeting.  Specifically, §104 of that statute provides that: 

"1.  Public notice of the time and place of a meeting scheduled at least one week prior thereto shall be given to the news media and shall be conspicuously posted in one or more designated public locations at least seventy-two hours before each meeting.  

2.  Public notice of the time and place of every other meeting shall be given, to the extent practicable, to the news media and shall be conspicuously posted in one or more designated public locations at a reasonable time prior thereto.  

3. The public notice provided for by this section shall not be construed to require publication as a legal notice." 

Stated differently, if a meeting is scheduled at least a week in advance, notice of the time and place must be given to the news media and to the public by means of posting in one or more designated public locations, not less than seventy-two hours prior to the meeting.  If a meeting is scheduled less than a week an advance, again, notice of the time and place must be given to the news media and posted in the same manner as described above, "to the extent practicable", at a reasonable time prior to the meeting.  Therefore, if, for example, there is a need to convene quickly, the notice requirements can generally be met by telephoning the local news media and by posting notice in one or more designated locations.  

            If our assumption is correct, that the "pre-meeting" that you described is a "meeting", it must be preceded by notice of the time and place given to the news media and by means of posting pursuant to §104 of the Open Meetings Law. Therefore, if a pre-meeting is scheduled to begin at 5:45 PM, notice must be given to that effect.

            With respect to agendas, in short, there is nothing in the Open Meetings Law or any other law of which we are aware that deals specifically with agendas.  While many public bodies prepare agendas, the Open Meetings Law does not require that they do so.  Similarly, the Open Meetings Law does not require that a prepared agenda be followed.  However, a public body on its own initiative may adopt rules or procedures concerning the preparation and use of agendas.
With respect to your questions regarding meetings, because the Planning Board constitutes a “public body” it is required to prepare minutes in accordance with the Open Meetings Law.  Section 106 pertains to minutes of meetings and directs that:

"1.  Minutes shall be taken at all open meetings of a public body which shall consist of a record or summary of all motions, proposals, resolutions and any other matter formally voted upon and the vote thereon.

2.  Minutes shall be taken at executive sessions of any action that is taken by formal vote which shall consist of a record or summary of the final determination of such action, and the date and vote thereon; provided, however, that such summary need not include any matter which is not required to be made public by the freedom of information law as added by article six of this chapter.

3.  Minutes of meetings of all public bodies shall be available to the public in accordance with the provisions of the freedom of information law within two weeks from the date of such meetings except that minutes taken pursuant to subdivision two hereof shall be available to the public within one week from the date of the executive session."

            Finally, there is nothing in the Open Meetings Law that deals specifically with videotaping public meetings.  While a public body is not required to record its meetings, many do so on their own initiative, and, subject to reasonable rules, the courts require that public bodies permit members of the public to videotape public meetings.

            On behalf of the Committee on Open Government, we hope that this is helpful to you. 

                                                                                                Sincerely,

 

                                                                                                Camille S. Jobin-Davis
                                                                                                Assistant Director

 

CSJ:jm

cc: Planning Board